Federal Records Access for State Court

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.

     Federal records can be acquired for a Family Court case, but not by a subpoena.  There is a misunderstanding as to the ability of the effectiveness of a “Court of Competent Jurisdiction” to obtain federal records.  A state court subpoena is useless when served on a federal entity, HOWEVER, Federal records can be obtained using different processes.

     The Supremacy Clause of the United States Constitution (Article VI, Paragraph 2) creates an impediment to the state subpoena.  The Supremacy Clause establishes the federal constitution, (and federal law generally) is superior to state law.  Therefore, a subpoena under the authority of a state court (like Family Court) cannot compel a federal entity to reply.

     State subpoenas are not only ineffective for federal entities, the Privacy Act of 1974 specifically prohibits federal agencies from disclosing information about an individual without written consent unless pursuant to one of 12 exceptions.  Once such exceptions is the Freedom of Information Act (FOIA).

     Federal FOIA has a provision that records can be released by an Order from a “Court of Competent Jurisdiction” (such as Family Court) but federal entities can be very picky with technicalities and slow to analyze the request.  The federal government will not accept a subpoena as it does not fit the parameters of the Order allowed within FOIA.
The best course of action is to find a friendly voice at the federal entity and request the format they prefer for such requests.  The General Counsel or Judge Advocate can be very helpful, since they ultimately will screen the request.  However, there are other ways get federal documents in Family Court: 

• Have the Court authorize discovery.  Burden the other party in discovery to provide you the documents sought.  Since the individua whose name is on the federal document to be released, he/she can have it released. This clear of Privacy Act issues.
• Since you can get it through Discovery, have the other side consent to a Release Form, and have the document directly sent to you.
• FOIA provides for the release.  It requires a judge’s signature (not a clerk of court or anyone else).  It also requires two findings (the court determines itself as a Court of Competent Jurisdiction; and the documents are necessary to adjudicate the case), and the documents necessary must be very specifically identified.  The acceptable format of the Order can always be sticky, therefore get the agency’s preferred language.
  

     Lawyers often request subpoenas on the eve of need of a document.  The issues noted above herein to gain federal records are not likely to be produced at the last moment. So even following the above options, there is no immediate threat of a federal agency jumping though hoops at the last minute.  Federal documents can be accessed for Family Court, but it takes planning and lead time!

     Lawyers have argued that a subpoena is in fact an Order of the court t produce a document.  However, the compliant Order under FOIA has technicalities not found in subpoena.  Regardless of logic, it won’t work.
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* The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.